Kalyan Jyoti Sengupta ( 1 ) THE plaintiff/state Government has filed this suit for a decree of declaration that the ex parte decree dated 22nd July, 1986 passed in Suit no. 367 of 1985 is void and/or voidable, inoperative and not binding on the plaintiff, and further that the registered conveyance dated 10th January 1989 executed by the Registrar Original Side of this Court in favour of the defendant No. 1 pursuant to this decree is void ab initio, illegal, inoperative and not binding upon the plaintiff and also delivery of and cancellation of the said conveyance. Decree for perpetual injunction restraining the defendant Nos. 1 (a), 1 (b), 1 (c), 1 (d) and 2 and each of them, their servants, agents, representatives and assignees from acting upon and/or giving effect, or relying on the said decree. The other incidental reliefs are also claimed. This suit was originally filed, seeking relief originally against one radheshyam Agarwal, since deceased and predecessor-in-interest of the present defendant Nos. 1 (a)-1 (d ). ( 2 ) THE original plaintiff obtained an ex parte decree which is sought to be impugned here, for specific performance of an agreement for sale of the Sonali Tea Estate together with unexpired period of leasehold interest against the Great Gopulpurtea Company Ltd. , who was admittedly a lessee in respect of a plot of land suitable for tea plantation of an area of more than 1,000 acre from the plaintiff under the West Bengal Estate Acquisition Act, 1953. This lease was granted and by registered instrument by the Secretary state for the Council of India in perpetuity in Form-C with an obligation for renewal on expiry of every 30 years, to one Bagrakote Tea Company Ltd. on or about 21st January 1925 with effect form 1st April 1924. The Original lessee, thus having acquired the land of the said Sonali Tea Estate set upon an establishment of a tea estate, which consisted of various movable and immovable properties. In terms of the lease deed the lessee was entitled to assign the leasehold interest unto and in favour of any person of its choice. Accordingly, the original lessee and/or owner of the Sonali Tea Estate duly and lawfully transferred all its assets and properties to the defendant No. 2 by registered conveyance. In terms of the lease deed the lessee was entitled to assign the leasehold interest unto and in favour of any person of its choice. Accordingly, the original lessee and/or owner of the Sonali Tea Estate duly and lawfully transferred all its assets and properties to the defendant No. 2 by registered conveyance. Thus the defendant No. 2 became the lessee of the land of the said tea estate till 31st March 1954, at that time the Sonali tea Estate was described and/or known as Saogoan Tea Garden and/or estate. In the records of rights the defendant No. 2 was recorded as the subsequent transferee lessee. Thus the plaintiff recognized its right. In similar manner another tea estate was acquired by the defendant No. 2 and this tea estate was called as Rupali Tea Estate. The defendant No. 2 later mortgaged both the tea estate as security for repayment of loan obtained from United Bank of India (UBI ). The defendant No. 2 could not pay off mortgage debt. The UBI filed a suit for recovery of money lent and advanced and also for enforcement of mortgage in the appropriate civil Court. In this mortgage suit by an interim measure the Court appointed a Receiver to run both the Tea Gardens. For quite several years these tea gardens and estates had been under control and possession of the Receiver. The Receiver duly appointed the original Defendant No. 1 Radheshyam as an agent to look after the affairs and running of the said Tea estates. The workers forming a co-operative Society at one point of time tried to intermeddle and/or interfere with the running and affairs of the said tea estate, by the Receiver through the agent. So, there were disputes with regard to gaining control of the tea estate. The defendant No. 3 claims to be the office bearer of the Co-operative society. Ultimately the Bank Suit was compromised by and between the defendant No. 2 and the said Bank, where by and whereunder the Rupali tea Estate being one of the mortgaged properties was sold by the Court to third parties and the proceeds thereof was adjusted against the outstanding dues. The UBI accordingly released the Sonali Tea Estate from the encumbrance of mortgage in the records of right in the Government. The ubi was shown to be a mortgagee of the two tea estates. Since the defendant nos. The UBI accordingly released the Sonali Tea Estate from the encumbrance of mortgage in the records of right in the Government. The ubi was shown to be a mortgagee of the two tea estates. Since the defendant nos. 1 and 2 were not in a position to run the Sonali Tea Estate they agreed to sell this tea estate along with lease hold interest in favour of the original defendant No. 1 by an agreement in writing. At the same time the defendant no. 1 was authorized to take physical control and possession of the tea estate by a Power of Attorney. The defendant No. 2 therefore, applied for permission to assign and/or transfer the leasehold interest in favour of the defendant No. 1. It is claimed in the written statement that plaintiff took conditional decision for granting permission on payment of outstanding dues in relation to the tax, cess, etc, ( 3 ) MEANWHILE, the plaintiff/state tried to interfere with the possession and control of this tea estate by issuing a memo authorizing the defendant no. 3 herein to take charge and control of the tea estate. This action of the plaintiff/government was challenged by the defendant Nos. 1 and 2 and this challenge ultimately succeeded. ( 4 ) SINCE defendant No. 2 did not execute necessary conveyance, the earlier Suit being No. 367 of 1985 was instituted by the original defendant no. 1 against the defendant No. 2. The suit was not contested and an ex parte decree dated 22nd July 1986 was passed by this Court, as no written statement was filed. In terms of the decree the conveyance was not executed, as such the Registrar Original Side of this Court, in view of this default, executed and registered covenyance, which is under challenge. ( 5 ) IN the previous suit the present plaintiff was not a party. The ground for challenge of the decree and the conveyance is fraud, such fraud is alleged to have been discovered in or about September 1994, on making enquiries the plaintiff came to know that the defendant No. 1 had wrongfully, illegally and fraudulently instituted the previous suit without notice to the plaintiff or without making it a party. It is alleged that the decree was procured by the defendant No. 1 behind the back of the plaintiff. It is alleged that the decree was procured by the defendant No. 1 behind the back of the plaintiff. The defendant No. 1 was well aware that at all material times the plaintiff was absolute owner of the tea estate and that the defendant No. 2 had no authority to sell the said tea estate to the defendant No. 1 under any circumstances. The particulars of fraud as mentioned in the plaint are stated hereunder: fraudulent and misleading statements were made before this Court as if the defendant No. 2 was the owner of the land where as in reality the plaintiff was and still is the absolute owner of the said tea estate and the u. B. I, was a lessee. Previous suit was filed on the basis of false and fraudulent agreement allegedly entered into by and between the defendant No. 2 and the original defendant No. 1 who was the Constituted Attorney of the defendant No. 2. The defendant No. 2 executed false and fraudulent Power of Attorney in favour of the defendant No. 1. On strength of the same the purported agreement was entered into, and the original defendant No. 1 filed the writ proceedings being C. O. No. 9009 (W) of 1981. He fraudulently concealed in the writ proceeding that the UBI was the lessee of the said tea estate. The defendant No. 1 in collusion with and connivance of the defendant no. 2 obtained various order in the writ proceeding behind back of the plaintiff. The fraudulent suppression of fact is that defendant No. 2 has virtually ceased to exist in the eye of law in as much as for near about last 20 years or more no Board meeting has been held and no balance sheet has been prepared nor filed and it does not have any registered office at the local area or at the state. So-called Power of Attorney is false, frivolous and fraudulent document. ( 6 ) TWO written statements have been filed by the contesting defendant Nos. 1 and 2 respectively. Defendant No. 3 has been made party for effective adjudication and no relief has been claimed against him. It appears that the original defendant No. 1 for himself had filed written statement and denied all the allegation contained in the plaint. The plea of limitation has been taken contending that plaintiff had knowledge of passing of the decree. Defendant No. 3 has been made party for effective adjudication and no relief has been claimed against him. It appears that the original defendant No. 1 for himself had filed written statement and denied all the allegation contained in the plaint. The plea of limitation has been taken contending that plaintiff had knowledge of passing of the decree. It is further contended that all the allegations made in the plaint has been adjudicated in the writ jurisdiction by the learned Single judge of this Court and by the Hon'ble Supreme Court in SLP being preferred against the order of learned Single Judge which was ultimately affirmed by the Hon'ble Supreme Court of India. ( 7 ) IT is further alleged in the written statement that there is no allegations and averment of fraud in any sense to take action by this Court. The defendant No. 2 has filed a written statement and this has been signed by the original defendant No. 1 in the capacity of Constituted Attorney. Similar and identical plea has been taken. On the aforesaid factual aspect and in the back ground of rival contention this Court framed following issues : (i) Is the conveyance executed and registered by the Registrar original side pursuant to the impugned decree liable to be set aside cancelled and delivered up ? (ii) if so to what relief is the plaintiff entitled ? (iii) Is the defendant No. 3 liable to be struck out from the array of the defendant as alleged by the defendant Nos. 1 and 2. ( 8 ) IN order to prove the case made out in the plaint State of West bengal/plaintiff brought only one witness namely Shri Rabindra Nath Kanji, who at the time of giving testimony was Deputy Collector and Deputy magistrate Barasat, 24 Paraganas (North ). Significantly, this gentleman had verified the plaint. His testimony is summarized as follows : from 1973 to 2000 he worked at Jalpaiguri. He joined in the year 1973 Touzi department under control of Commissioner and Collector, jalpaiguri. Thereafter he was promoted to the post of Sub-divisional compensation Officer in the year 1982 and worked under the said collector. In 1997 he became cadre of the West Bengal Civil Service (Executive) and was promoted and designated to the post of Deputy Collector and Deputy magistrate in Jalpaiguri. Thereafter he was promoted to the post of Sub-divisional compensation Officer in the year 1982 and worked under the said collector. In 1997 he became cadre of the West Bengal Civil Service (Executive) and was promoted and designated to the post of Deputy Collector and Deputy magistrate in Jalpaiguri. He came to be acquainted with the Company namely great Gopalpur Tea Company Ltd. in the year 1994 and Radheshyam agarwal defendant No. 1 herein in connection with a contempt petition filed against the Collector, regarding possession of Sonali Tea Estate. From then onwards he conducted litigations in relation to this Tea garden right from this Court to the Apex Court. He took various steps on behalf of the government in the writ petition for getting the order of status quo vacated with regard to possession of the tea garden. He, having found the tea garden being closed and consequent thereupon there had been a labour trouble he contacted one Mr. Pradip Kumar Bhadra defendant No. 3 herein and proposed him to run the business. Accordingly the District Magistrate then passed an order enabling the defendant No. 3 to run the said tea estate on 31st August 1994. According to him on 1st September 1994 Mr. Bhadra took possession and continued to run the tea estate. He says that from the list of dates filed in the writ petition pending herein in this Court he came to know for the first time that Sonali Tea Estate had already been sold to the defendant No. 1 through Court. Then he discussed this mater with the learned lawyers appearing for the Government and he was advised to go to jalpaiguri and have discussion in details with the District Magistrate. He had discussed with the District Magistrate and then decision was taken to file the instant suit, challenging the decree, conveyance and two powers of attorneys. He has stated merely the statements made in paragraph 8 at page 18 of the plaint being the alleged particulars of fraud are true and correct, nothing else. ( 9 ) IN the cross-examination he has admitted that the grant of lease and renewal thereof or realization in connection with the lease, of rent, cess are done by the Touzi Department. He also admitted that he never worked in Touzi Department as Deputy Collector or Magistrate. ( 9 ) IN the cross-examination he has admitted that the grant of lease and renewal thereof or realization in connection with the lease, of rent, cess are done by the Touzi Department. He also admitted that he never worked in Touzi Department as Deputy Collector or Magistrate. He admitted further that some other Deputy Magistrate and Collector in Touzi Department were responsible in dealing with this tea garden. He has stated he had no personal knowledge about what had happened in relation to the dealings and transaction of the tea garden and he came to know all about from the records. He has admitted frankly that present suit was filed without any concurrence of the LR Department he also admitted that the Court Fee has been paid by the then Government Pleader Mr. Subodh Ukil out of his own pocket and he was not aware of the fact of reimbursement of the Government. ( 10 ) ON the other hand the defendant has brought two witnesses to demolish the case of the plaintiff and further to establish their case that leasehold interest along with the tea estate was duly and lawfully sold by the Gopalpur Tea Company Ltd. in favour of the defendant No. 1. One Shri swapan Kumar Mullick the learned Advocate has deposed the summary of which is stated hereunder. ( 11 ) HE acted as an Advocate for Gopalpur Tea Company Ltd. defendant No. 1 from 1975 till about 1979-80. He says that Gopalpur Tea company Ltd. had two tea gardens namely Sonali Tea Estate and Rupali tea Estate. These two estates were mortgaged in equitable form with the ubi to secure loan. The loan could not be paid off, so a mortgage suit was filed by the Bank in the appropriate Court at Jalpaiguri. The said suit was marked as OC 15 of 1972 and was disposed of by passing a compromise decree. In terms of the compromise decree it was agreed and decided by and between the plaintiff Bank, Gopalpur Tea Company Ltd. and one M/s. Kamini Tea Company Ltd. which was added as party that Rupali Tea Estate would be sold to the said added defendant and out of the sale proceeds the mortgage debts inclusive of interest would be paid off to UBI. Accordingly, rupali Tea Estate was sold to Kamini Tea Company Ltd. He acted as an advocate on behalf of the Great Gopalpurtea Company Ltd. in the said suit and transaction. During pendency of the suit the possession of the Sonali tea Estate was taken by an unauthorized workers' co-operative society. So he was appointed Receiver in place and stead of one Mr. Dilip Sen the Bank manager on repayment of the mortgage dues to the bank he took possession of the Sonali Tea Estate and then he handed it over to Great Gopalpur Tea company Ltd. or the nominee of the said Company in terms of the compromise decree. He says that the taking possession of Sonali Tea Estate was not very easy. He was strongly resisted by the workers of the co-operative society. Then he made an application in Jalpaiguri Court for assistance of Police for taking possession in terms of the compromise decree, however the learned Court at Jalpaiguri rejected that application. Accordingly, he made application for revision in this Court in its revisional jurisdiction appropriate order was passed, granting police assistance for taking possession. Ultimately with the help of the police he could take physical possession on 10th July 1978. He says further that on repayment of the entire mortgage dues in his presence the original lease deeds in respect of the two tea gardens were returned. One Mr. Krishna Kumar khemka one of the Directors of the defendant No. 2 got the original lease deed in relation to the Sonali Tea Estate while original deed in relation to the Rupali Tea estate was given to the said Kamini Tea Estate. He said that on 10th July 1978 he had handed over possession of the tea garden to the defendant No. 1 being the nominee of the defendant No. 2. On handing over possession of the Sonali Tea Estate to the original defendant No. 1, he stood discharged in terms of the compromise decree. Thereafter he acted as an advocate on behalf of the Great Gopalpur Tea Company Ltd. and he personally went to file an application before the Deputy Commissioner jalpaiguri for permission of sale of Sonali Tea Estate to Shri Radeshyam agarwala. Thereafter he acted as an advocate on behalf of the Great Gopalpur Tea Company Ltd. and he personally went to file an application before the Deputy Commissioner jalpaiguri for permission of sale of Sonali Tea Estate to Shri Radeshyam agarwala. Pursuant to this application a memo was issued by the Deputy commissioner Jalpaiguri in favour of the Golpalpurtea Company Ltd. thereby it was mentioned that permission was granted upon payment of all the outstanding rents, cess and other dues of the Tea Board. The Tea Board also filed suit in this Hon'ble Court against the said Gopalpur Tea Company ltd. in the Original Side of this Court and the two Suits were settled and total amount was eventually paid by the company to the Tea Board. He contends that all the dues of the Tea Board were paid off and the two suits were compromised. While deposing he proved various orders having been passed, the documents and receipts of the same were proved by him. ( 12 ) THE defendant produced the next witness namely one Rajesh agarwal who is now one of the substituted defendants and being one of the heirs and legal representatives of original defendant No. 1 who died. His testimony regarding purchase of the Sonali Tea Estate is derived from the records. He has personal knowledge about taking possession on 10th July, 1978 from Swapan Kumar Mullick Receiver of the Sonali Tea Estate. He had no personal knowledge about the decree passed by this Court, ex pane in relation to the two Tea Gardens in the earlier suit for specific performance. He has cited from the records that original defendant No. 1 Bagrakote Tea company was the lessee in respect of the Sonali Tea Estate granted by the secretary of State in Council for a period of 30 years and the same was executed on or about 21 st January 1925. Thereafter, in or about 20th April, 1961 the Bagrakote Tea Company Ltd. transferred the leasehold interest in favour of the Great Gopalpur Tea Company Ltd. (the defendant No. 2 herein)the Government accepted and recognize such transfer for effecting mutation in favour of the defendant No. 2 and thereafter rent, cess and land revenue were paid by the defendant No. 2. Thereafter, in or about 20th April, 1961 the Bagrakote Tea Company Ltd. transferred the leasehold interest in favour of the Great Gopalpur Tea Company Ltd. (the defendant No. 2 herein)the Government accepted and recognize such transfer for effecting mutation in favour of the defendant No. 2 and thereafter rent, cess and land revenue were paid by the defendant No. 2. , thereafter on conveyance being executed by the Registrar Original Side of this Court in terms of the decree passed in the suit for specific performance original defendant No. 1 became lessee. The Collector was informed and copy of the conveyance was also duly submitted. His late father late defendant No. 1 had requested the Collector to mutate the name in respect of Sonali Tea Estate in his favour. On taking possession and execution of the conveyance the land revenue, cess, lease rents were duly deposited and the same were realized from his father. On 9th May 1994 there was labour trouble in the Sonali Tea Estate and ultimately this tea estate had to be closed by declaring lockout. However, the government most illegally facilitated the defendant No. 3 to take possession wrongfully of the said tea garden. This was challenged by his father in a writ jurisdiction and an order of status quo was passed but the Government in breach of the order of status quo facilitated the defendant No. 3 to take possession of the tea garden. Therefore, the contempt application was filed. Both the writ petition and contempt application were disposed of by Justice kabir by one common judgment whereby the memo authorizing the defendant No. 2 to take possession of the tea garden was quashed. While giving his testimony he proved a quite good number of documents namely letter intimating about sale of the tea garden in favour of his late father, deposits of rents, cess etc. and other orders and records of this Court. ( 13 ) MR. Moloy Ghosh appearing for the plaintiff contends that decree in this suit was obtained practising fraud upon the Court and without making the State of West Bengal who is the owner of the Tea Garden in question a party defendant. and other orders and records of this Court. ( 13 ) MR. Moloy Ghosh appearing for the plaintiff contends that decree in this suit was obtained practising fraud upon the Court and without making the State of West Bengal who is the owner of the Tea Garden in question a party defendant. It was fraudulently represented, before this Court that as if the defendant No. 2 namely Great Gopalpur Tea Company Ltd. was the owner of this property, and actually there was no lease subsisting on the date of filing of the suit No. 41/1997 or at the time of the passing of the decree. The lease was executed on or about 1996 on renewal in favour of ubi who even was not made party defendant. Had this fact been mentioned in the plaint or disclosed before this Court then this Court would not have passed such a decree. It is further fraudulent act and conduct on part of the original defendant No, 1 by representing the defendant No. 2 in his own suit to obtain decree. The agreement for sale on the basis of which the previous suit was filed and consequently decree obtained was also product of fraudulent act of the original defendant No. 1. While acting as a constituted attorney original defendant No. 1 filed the suit purported to be in individual capacity against the defendant No. 2 who was not given any chance to appear and contest the instant suit. The collusive act and conduct will also appear from the fact that in the instant suit the written statement filed by the defendant No. 2 has been signed by the Original defendant No. 1 as a constituted Attorney on the one hand and he has filed his own written statement on the other hand. He contends that from exhibit No. A (being the original lease dated 26th March, 1996) it will appear that the defendant No. 2 had no right, title and interest to sell in favour of the defendant No. 1 as ubi was the lessee at that point of time. ( 14 ) NOTHING has been proved to show that the defendant No. 2 was the lessee and/or owner of the property to convey the same in favour of the defendant No. 1. ( 14 ) NOTHING has been proved to show that the defendant No. 2 was the lessee and/or owner of the property to convey the same in favour of the defendant No. 1. He submits that the DW 1 Swapan Kumar Mullick failed to prove the factum of ownership of the defendant No. 2 further his testimony should not be believed nor be accepted, firstly, he had no knowledge about the facts and circumstances under which the previous suit for specific performance was filed or the decree was obtained. Moreover, he is partisan-witness as he appeared on behalf of the defendant No. 2 and this time he is supporting the defendant No. 1. He contends further that a learned Lawyer who had drafted the pleading and appeared as a Counsel is not expected to stand as a witness in support of any of the parties and this is a serious misconduct on his part as a lawyer. Therefore, obviously he is an interested witness. ( 15 ) HE contends that question of limitation in this case does not arise, as fraud has been discovered on or about September 1994 upon making relevant enquiries from the pleadings and documents'. According to him the litigant on discovery of the fraud can approach the same upon which the fraud was practised, to challenged the decree or order passed at any time and even in collateral proceedings. In support of his contention he has relied on the decision of the Supreme Court reported in AIR 1994 SC 853 (S. P. Chengalvaraya Naidu v. Jaganath), (2000)3 SCC 581 (United India Insurance co. Ltd. v. Sanjay Singh and Ors.) and (1996)5 SCC 550 (Indian Bank v. Satyam fibres (India) Pvt. Ltd. ). ( 16 ) HIS next contention is that though in the previous suit no written statement was filed still it was not open for the Court to pass a decree automatically. The Court should have called for evidence in this matter as there involved disputed question of fact as to the ownership of the property in question as well as failure on part of the vendor to execute conveyance. The Court should have enquired into the disputed question of fact mentioned in the plaint. In support of his submission he has relied on Supreme Court decision reported in (1999)8 scc 396 (Balraj Taneja and Anr. v. Sun/7 Madan and Anr. ). The Court should have enquired into the disputed question of fact mentioned in the plaint. In support of his submission he has relied on Supreme Court decision reported in (1999)8 scc 396 (Balraj Taneja and Anr. v. Sun/7 Madan and Anr. ). ( 17 ) HE urges that the findings and decision of the learned Single Judge of this Court in the writ petition in relation to the property is not binding in this suit. According to him in the writ petition issues as regard the title of the defendant no. 1 in relation to this property were not raised nor the same were argued. The writ Court decided the matter in connection with the different cause of action and facts and circumstances of the case. Therefore, decision of the learned single Judge of this Court is a precedent sub silentio. In this connection he has drawn my attention to a decision of the Supreme Court reported in Air 1989 sc 38 (Delhi Municipal Corporation v. Gurnam Kaur ). ( 18 ) HE contends that factually the plaintiff witness Shri Kanji has proved the case of fraud. At the present moment the lease has expired but the present defendant Nos. 1 (a), 1 (b), 1 (c) and 1 (d) will claim for renewal in perpetuity on the strength of these impugned documents, as the lease provides for renewal as a matter of course, therefore, unless these two documents are set aside and declared to be void the plaintiff will seriously prejudiced and it will not be able to dealt with the property in accordance with the law. ( 19 ) MR. Hirak K. Mitra learned Senior Counsel appearing for the defendant Nos. 1 (a), 1 (b), 1 (c) and 1 (d) submits firstly that going by the face value of the averments and statements made in the plaint no prima facie case of fraud has been made out. The State of West Bengal being the lessor could not be a party in the previous suit. Secondly the agreement for sale was between the defendant No. 2 and the original defendant No. 1 of the tea garden in question. Impleadment of State of West Bengal in the suit for specific performance was not at all necessary. The State of West Bengal being the lessor could not be a party in the previous suit. Secondly the agreement for sale was between the defendant No. 2 and the original defendant No. 1 of the tea garden in question. Impleadment of State of West Bengal in the suit for specific performance was not at all necessary. Therefore, the plaintiff in the earlier suit not having impleaded state of West Bengal has not done anything wrong nor question of suppression for that matter did arise. The legal position is well settled that in suit for specific performance of an agreement for sale only the vendor and vendee are necessary parties and none else. In support of his contention he has relied on good number of decisions of various High Courts reported in AIR 1986 Bom. 15 (Mohd. Hanif (deceased by Lrs.) and Ors. v. Mariam Begum and Ors.), AIR 1976 MP 148 (Panne khushali and Anr. v. Jeewanlal Mathoo Khatik and Anr.), AIR 1987 PH 197 (Krishan lal and Ors. v. Tek Chand and Ors.) and AIR 1945 Cal 355 (Prem Sukh Gulgulia v. Habib Ullah ). ( 20 ) THE allegations of fraud by reason of non-impleadment of the State (Plaintiff herein) or UBI is wholly baseless and unwarranted under the law and such allegation did not constitute fraud at all. ( 21 ) HIS next contention is that the present suit is also hit by principle of constructive resjudicata if not expressed as Kabir, J. in His Lordship's judgment in the writ Court has finally decided that the sale in favour of the original defendant no. 1 is valid as this question was raised previously by the State of West Bengal. The specific issue was raised at the time of the argument of the said writ proceeding and His Lordship decided in favour of his client. This judgment was challenged by the State before the Apex Court and such judgment has not been interfered with rather it was affirmed. He has drawn my attention to exhibit 12 in this connection. It is not now open for the plaintiff to reopen this issue or case. The plea of constructive res judicata is applicable equally in case of the writ proceedings. He has drawn my attention to exhibit 12 in this connection. It is not now open for the plaintiff to reopen this issue or case. The plea of constructive res judicata is applicable equally in case of the writ proceedings. In support of this portion of his argument he has relied on the decision of the Supreme Court reported in AIR 1971 SC 1676 (State of Punjab v. Bua Das Kaushal) and AIR 1968 SC 1370 (Union of India v. Nanak Singh ). ( 22 ) HE contends that the suit has not been filed by the State of West bengal really rather the name of the State has been lent. He has drawn my attention to the provisions of LR manuals of its Chapter III Rules 146,147,148, 149 and 150 those rules provide what are the steps to be taken for filing a Civil suit on behalf of the State of West Bengal. From the evidence of Kanji (P. W.) it will appear that no such step has been taken. He has drawn my attention to the answer of plaintiff's witness given to question specifically. The witness said that court fee had been paid by the then learned Government Pleader Mr. Ukil, later it has been reimbursed. Even the Collector has not signed this plaint in the verification nor the appropriate official of Touji Department has come forward to verify the plaintiff or to give evidence. The P. W. was not attached to the Touji department; he did not have anything to do with the grant of renewal. In this connection he has drawn my attention to his answer to the question put to him. ( 23 ) HE contends significantly collector concerned did not come to depose in the suit though at one point of time on the ground of official preoccupation in connection with election duty adjournment was obtained from this Court. His further contention is that Touji Department has not come forward nor the collector had taken any interest in this matter. It is surprising that learned Government pleader could pay Court Fee out of his own pocket and there is no evidence of any person coming forward to prove Court fee having been reimbursed. Mr. Ukil himself has not come forward to tell this Court whether it has been reimbursed. In real sense the suit must have been filed and/or engineered by Mr. Mr. Ukil himself has not come forward to tell this Court whether it has been reimbursed. In real sense the suit must have been filed and/or engineered by Mr. Ukil in his personal capacity with the help of Mr. Kanji who has and still had nothing to do with Touji Department. ( 24 ) ON merit he contends that the lease was renewed admittedly in the name of UBI as a mortgaged on or about August 1976 with effect from 1966. This was renewed in the name of UBI because the original title deed in relation to the Sonali Tea Garden along Rupali Tea Garden was deposited with the Bank for security of the loan granted by it. Therefore, under the provision of the lease it has been renewed actually in favour of the Great Gopalpur Tea Estate Pvt. Ltd. as an Mortgagor. Exhibit A being the renewed lease is to be read carefully and properly to understand legal implication. He submits further that later on this mortgage was redeemed so far this tea estate is concerned by paying off the entire dues of the UBI. The consent order being No. 235 dated 1st April, 1973 exhibit 13 proves release of the property from the mortgage. ( 25 ) MR. Swapan Kumar Mullick DW 1 in his testimony (questions Nos. 8,9,10,11,12,13,17,25) has specifically stated, he took possession of the tea garden as a Receiver and the original renewed lease deed being exhibit A was handed over to him and in his turn he handed over the original lease deed to the original defendant No. 1 in terms of the consent order, of the defendant No. 2. Therefore, it is absurd to allege that lease was granted in favour of UBI. Naturally the question of practising fraud because of non-impleadment of UBI as a party to the previous suit or that Great Gopalpurtea Company Ltd. was the owner is totally out of questions. Those questions have been gone into by Justice Kabir while disposing of the earlier writ petition of 1981. No relief was granted in the earlier writ petition observing that the Great Gopalpur Tea Company Ltd. being the defendant No. 2 had no right, title and interest in relation to the property, as the said Company was the writ petitioner. Those questions have been gone into by Justice Kabir while disposing of the earlier writ petition of 1981. No relief was granted in the earlier writ petition observing that the Great Gopalpur Tea Company Ltd. being the defendant No. 2 had no right, title and interest in relation to the property, as the said Company was the writ petitioner. ( 26 ) THE Great Gopalpurtea Company Ltd. applied to the Collector and deputy Commissioner for granting permission to sell the leasehold interest together with tea estate in favour of the original defendant No. 1. In response to this application the Collector in no uncertain terms recorded that permission stood granted upon payment of all the arrears, cess and liquidation of the dues of Tea Development Corporation: This conditional permission will be appearing from part of exhibit "o" Mr. Mullick DW 1 has categorically stated in his evidence that he himself had gone to the Office of the District Collector and Commissioner and submitted this application. He had also said that the aforesaid conditional permission has been received during his tenure of his Receivership or acting as an Advocate of the defendant No. 2. He has drawn my attention to the various exhibits being Nos. exhibits 31,32,33,34,20 which record payment of lease, rent, cess, taxes and other dues of the Tea Development Corporation. Under those circumstances he contends that the sale of the tea estate in favour of his client was absolute. His client being the original defendant No. 1 thereafter became lawful lessee till 1996 and on expiry of the lease the original first defendant was and the present defendants are now entitled to renewal of the same under the clause of the lease deed. ( 27 ) HE contends that since despite agreement the defendant No. 2 did not execute and register conveyance in spite of obtaining permission previous suit for specific performance was filed in this Court. Service of writ of summons by usual and ordinary mode was found to be ineffective, as such by substituted service of advertisement the summons could be served. In spite of service of writ of summons the defendant No. 2 herein and the only defendant in the previous suit did not come forward to contest the same and as such this Court passed a decree lawfully. In spite of service of writ of summons the defendant No. 2 herein and the only defendant in the previous suit did not come forward to contest the same and as such this Court passed a decree lawfully. Under the provision of Order 8 Rule 5 sub-rule 2 (b) of the Civil Procedure Code the Court in its discretion dispensed with the proof of the case and decree was passed automatically. His next contention is that during subsistence of the lease the Lessor/state has no right to say in this matter in relation to the agreement for sale or for the relief for specific performance in the suit. He contends that defendant No. 2 has not come forward to challenge the decree. It is the defendant No. 2 whose interest might have been affected. ( 28 ) AS far as the defendant No. 3 Mr. Bhadra is concerned, he submits he is out and out stranger and an interloper. He had and still has no right to come in the suit. At one point of time he was illegally and wrongfully authorized to take possession of the tea garden by an official memo. Such agreement has been set aside by this Court. At present in a suit of this nature he had no manner of right and nor interest at all. He has neither legal right nor any existing commercial right. He was not a party to the agreement for sale nor he was a party to the previous suit. When the suit was filed he was not in the picture. In the event suit succeeds he cannot have any direct interest in the tea garden. At the highest he along with other intending lessee may apply for grant of lease and in the event the suit fails he has no chance to claim any interest in this property. In order to remain as a party in the suit he must establish his existing legal right and interest and not merely a commercial interest. In support of his contention he has relied on an English decision reported in (1956)1 AER 273. Therefore, Mr. Das's client defendant No. 3 shall be struck out from the array of the defendants. ( 29 ) MR. In support of his contention he has relied on an English decision reported in (1956)1 AER 273. Therefore, Mr. Das's client defendant No. 3 shall be struck out from the array of the defendants. ( 29 ) MR. Das Senior Counsel appearing for the defendant No. 3 submits that his client is necessary party and his locus in the suit has in fact been recognized by the Supreme Court by directing this Court to hear out the previous writ petition along with his application for intervention. Government of West bengal once allowed his client to run the tea garden. On the date of filing of the suit there was no subsisting lease and in the event the decree passed in the previous suit is set aside consequently the conveyance executed pursuant thereto is cancelled, then this tea garden will be free to be dealt with by the government. In that case his client has right to apply for grant of lease along with other prospective lessee. Therefore, according to him it is not just merely commercial interest, his client got legal and constitutional right as well to be treated equally with other eligible prospective lessee in relation to the public property. He submits further that the decree was obtained in collusion between the original defendant No. 1 and defendant No. 2. The Original defendant No. 1 while pressing his own claim acted on behalf of the defendant No. 2 as a constituted attorney in the self-same suit. This fraud has been practised by him for obtaining a decree in this Court. He supports the argument of Mr. Moloy ghosh on the other point as to invalidity and illegality of the decree. ( 30 ) I have carefully considered the respective submission of the learned counsels and pleadings and examined evidence produced before me. I think before I decide this matter issue-wise it would be appropriate for me to decide the question of limitation first, though there is no specific issue having been raised, as this issue can be considered and dealt with by the Court under Section 3 of the Limitation Act, 1963 even if the point is not taken specifically. The learned counsel Mr. The learned counsel Mr. Hirak Mitra says that the story of discovery of alleged fraud in obtaining a decree in this case is a concocted one, as State had knowledge and/or is deemed to have knowledge of passing of the decree, when the application was made to the Touzi Department for effecting mutation in 1989 after the decree had been passed. He contends Mr. Kanji not being an Officer concerned and/or attached to Touzi Department cannot say when the State of west Bengal derived knowledge of passing of the decree. I am of the view as rightly contended by Mr. Moloy Ghosh that the ordinary period of limitation of three years for filing a suit on the ground of fraud is not applicable. Under the provision of Article 112 contained in schedule of the Limitation Act, 1963. 30 years of limitation is applicable in case of a suit filed by the State of West bengal. Therefore, I hold that the suit is not barred by limitation. I think the provision of Article 112 of the Limitation Act is required to be set out hereunder:"description of Suit period of limitation time from which period begins to run any suit (except a suit before the Supreme Court in the exercise of its original jurisdiction) by or on behalf of the Central Government, including the Government of State of thirty years. "when the period of limitation would begin to run under this Act against a like suit by a private person. ( 31 ) ANOTHER point of law has been raised by Mr. Mitra learned Senior counsel appearing for the substituted defendants whether the claim and contention of the suit is hit by the principle of res judicata and/or constructive res judicata or not. This issue, though not raised nor framed it was argued by both the parties at the time of hearing. I am of the view that this issue needs to be addressed and decided. Mr. Mitra says that in view of the judgment and order of Hon'ble Mr. Justice Kabir dated 15th January, 1997 passed in C. O. No. 9009 (W) of 1981 (Exhibit-12) since affirmed by the hon'ble Supreme Court the challenge against the decree as well as the said conveyance have been decided once for all. Mr. Mitra says that in view of the judgment and order of Hon'ble Mr. Justice Kabir dated 15th January, 1997 passed in C. O. No. 9009 (W) of 1981 (Exhibit-12) since affirmed by the hon'ble Supreme Court the challenge against the decree as well as the said conveyance have been decided once for all. Therefore, it has to be examined the scope and effect of the order and judgment of Justice Kabir whether the principle of res judicata either express or constructive should be applicable or not. ( 32 ) IN this connection it would be apposite to quote the exact language of His Lordship in relation to the conveyance in the manner as follows :-". . . this leaves us that the question of maintainability of the writ petition, finally on account of the conveyance of the tea garden executed in favour of Shri Radeshyam Agarwala on 10th January and secondly on account of expiry of the period of lease on 21st August, 1996. " ( 33 ) IT appears that by necessary implication His Lordship was pleased to hold that the aforesaid conveyance was a valid one. It is settled position of the law that to apply the principle of res judicata, there are few following conditions required to be satisfied. (i) There must be two litigations between the same parties, (ii) The issues involved in both the litigations are identically and/or substantially same. (iii) There must be raising of issue or issues in one litigation and decision thereon. (iv) In case of constructive res judicata even if there be no issue being raised and the same could have been raised in the previously decided limitation, the same issue cannot be raised. ( 34 ) PREVIOUSLY there was a doubt as to whether the decision and judgment rendered in a writ proceeding between the same litigating parties could be a factor to apply the principle of res judicata in the civil suit between the same parties subsequently. This point has been settled by the Hon'ble apex Court as appropriately cited by Mr. Mitra learned Senior Counsel in the case of Union of India v. Nanak Singh, reported in AIR 1968 SC 1370 . This point has been settled by the Hon'ble apex Court as appropriately cited by Mr. Mitra learned Senior Counsel in the case of Union of India v. Nanak Singh, reported in AIR 1968 SC 1370 . The supreme Court in paragraph 5 of the said judgment has observed as follows :"this Court in Gulabchand Chotalal v. State of Gujarat, AIR 1965 SC 1158 observed that the provisions of Section 11 of the Code of Civil procedure are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter. There is no good reason to preclude such decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. The Court in Gulabchand's case, AIR 1965 SC 1153 left open open the question whether the principle of constructive res judicata may be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceeding but was not so raised therein, must still be deemed to have been decided. " ( 35 ) AT the same time in paragraph 6 of the same judgment the Apex court has said as follows :-"if the order of the High Court in appeal from the order in the writ petition operated constructively as res judicata, it might have been necessary to consider the question which was left open by the Court in Gulabchand's case, AIR 1965 SC 1153 . But in our view the judgment in the previous case operates by express decision as res judicata. But in our view the judgment in the previous case operates by express decision as res judicata. It is true that in order that the previous adjudication between the parties may operate as res judicata, the question must have been heard and decided or that the parties must have an opportunity or raising their contentions thereon. In the present case, Gurdev Singh, J. , dealt with the question in some detail and held that Mr. Kane had no authority to terminate the employment of Nanak Singh. The High Court in appeal thought that the appeal could be disposed of only on the first ground, and they recorded no express finding on the second ground. But once the appeal was allowed and the petition was dismissed, the dismissal of the petition operated as a rejection of both the grounds on which it was founded. The judgment of the Privy Council on which reliance was placed by Counsel for Nanak Singh-Abdullah Ashger Ali Khan v. Ganesh Das, AIR 1917 PC 201, has in our judgment no application. In that case a suit was dismissed by the Court of the Judicial commissioner on the view that its constitution was defective, and no opinion of the merits of the dispute between the parties was expressed. The judgment of the Judicial Commissioner was held not to operate as res judicata in a subsequent suit between the parties to the previous suit, because the dispute was not decided on its merit by implication. It is unnecessary on that view to adjudicate upon the question whether mr. Kane had authority to determine the employment of Nanak Singh. " ( 36 ) UNDOUBTEDLY the aforesaid principles are well settled but how far this principle and decisions are applicable in this case are to be examined. In the previous writ petition it appears the in that said writ petition being c. O. No. 9009 (W) of 1981 there was no occasion for the State of West bengal to raise the question of legality and validity of the decree passed by this Court or cancellation of the conveyance simply because at that time no decree was passed and the aforesaid suit was not filed. It was subsequent development and at the time of hearing, of course, the decree was obtained and conveyance was executed. It was subsequent development and at the time of hearing, of course, the decree was obtained and conveyance was executed. Therefore, question of raising the plea of fraud, forgery or challenge of the decree was absolutely out of question. Accordingly the issue relating to validity and legality of the decree on the ground of fraud was not decided nor it was possible for the State of West bengal to raise such issue. So, the principle of res judicata either express or constructive does not apply here. ( 37 ) BUT issue of acquisition of leasehold interest by the defendant no. 2 vis-a-vis the right of the United Bank of India was certainly raised by the State of West Bengal and Mr. Justice Kabir has been pleased to decide the issue expressly. I shall appropriately quote the relevant findings of His lordship as follows :"the broad question emerge out of the said issue as follows : the first question which arises is whether a lease of the above mentioned tea estate was at all granted by the State of West Bengal to the petitioner company (defendant No. 2 herein) As far as the first question is concerned one will have to go beyond 26th March, 1976, when the lease of the above mentioned tea estate was granted by the State of west Bengal in favour of united Bank of India as a mortgagee of the petitioner company since the tea estate is in existence for long prior to that date. In fact, from annexure (a) to the writ petition, it is apparent from the records of the Land Reforms office Jalpaiguri which will be seen that it relates to mutation Case No. 406 of 1960-61 wherein the name of the petitioner company (defendant No. 2 herein) was directed to be substituted as owner by predecessor of the Saogoan/sonali tea Estate in place of the vendor Bagrakote Tea Company Ltd. the aforesaid fact establishes the existence of the petitioner company in relation to the Saogoan/sonali Tea Estate at least from 1961. However, the nature of the right of an individual to hold lands, including tea garden underwent a change with the enactment of the West Bengal acquisition Act, 1953. However, the nature of the right of an individual to hold lands, including tea garden underwent a change with the enactment of the West Bengal acquisition Act, 1953. Under sub-sections 1 and 3 of Section 6 of the said Act, intermediary was entitled to retain land comprised in a tea garden to the extent though necessary by the State Government and intermediary would be deemed to be holding such land directly under the State Government as a tenant from the tea vesting prescribed under the Act till a lease in respect thereof was granted by the government. The lease executed by the State of West Bengal on 26th March 1976, was obviously in pursuance of the aforesaid provision of the West bengal Estate Acquisition Act, 1953, and was executed in favour of the United Bank of India in its capacity as mortgagee of the petitioner company. In the lease deed itself wherein the petitioner company has been described as an owner of the Saogaon/sonali Tea Garden. Consequently nothing illegal can be read into the handing over of the said tea garden to the petitioner (defendant No. 2 herein) by the United bank of India by the Civil Suit No. 15 of 1972 passed by the subordinate Judge at Jalpaiguri. " ( 38 ) HAVING regard to the above I find no merit in the learned government Pleader's assertion that the lease granted to the UBI was completely independent of and on security to the status of the petitioner company vis-a-vis the aforesaid tea garden. The documents annexed to the writ petition reveals that tea garden has been acquired by the petitioner company (defendant No. 2) from the Bagrakote Tea Company Ltd. and if the submission of the learned Government Pleader are to be accepted it would be contrary to the provisions of sub-section 1 and 3 of Section 6 of the West bengal Estate Acquisition Act, 1953. ( 39 ) THE compromise decree passed by the Sub-ordinate Judge jalpaiguri on 1st April, 1977 in Civil Suit No. 15 of 1972, whereby the tea garden reverted to the petitioner company (defendant No. 2 herein ). ( 39 ) THE compromise decree passed by the Sub-ordinate Judge jalpaiguri on 1st April, 1977 in Civil Suit No. 15 of 1972, whereby the tea garden reverted to the petitioner company (defendant No. 2 herein ). ( 40 ) THUS this question relating to the status and title of the United bank of India has been conclusively determined not only by the consent decree in the Subordinate Court at Jalpaiguri in Civil Suit No. 15 of 1972 but also by the findings of His Lordship Mr. Justice Kabir. ( 41 ) CONSEQUENTLY, I accept the argument of Mr. Hirak Mitra that this issue raised in this suit is hit by the principle of res judicata. It is surprising in spite of decision of Mr. Justice Kabir this issue is raised in this suit and attempt was made to prove the same. ( 42 ) I have no hesitation to reject the contention of Mr. Ghosh that the United Bank of India is having any right, title and interest in the leasehold property. ( 43 ) JUSTICE Kabir incidentally noted the factum of execution of the conveyance of tea garden in favour of the original Defendant No. 1 on 10th january, 1989 but as I have already observed that His Lordship had no scope or reason to deal with the legality and validity of the same as no issue was raised. On the premises it would be my task to decide the question of legality and validity of passing of decree on the alleged ground of fraud and forgery. ( 44 ) IN this context now the issue No. 1 is required to be examined. I shall examine each and every sub-paragraph of paragraph 8 of the plaint which purport to constitute the particulars of fraud. ( 45 ) CLAUSE 8 (a) The sum and substance of the allegations in the said paragraph is that the plaintiff in the previous suit made fraudulent representation and misleading statement that the Gopalpur Tea Company ltd. (defendant No. 2) was a lessee of the said tea estate and it is the owner thereof. In my view these allegations do not constitute any allegation of fraud nor any misstatement, as it was correctly stated and represented that defendant No. 2 herein was the lessee at the time of filing of the previous suit UBI was not having any interest whatsoever. In my view these allegations do not constitute any allegation of fraud nor any misstatement, as it was correctly stated and represented that defendant No. 2 herein was the lessee at the time of filing of the previous suit UBI was not having any interest whatsoever. Justice Kabir has rejected after recording painstakingly all these allegations. ( 46 ) IN Clause 8 (b) I do not find any falsehood or fraudulent act in entering into any agreement by and between the defendant No. 2 and the original defendant No. 1 dated 2nd March, 1978 for sale of the said tea estate as alleged in this Clause. Both the parties were having contracting capacity under the law and subject to permission of the State of West Bengal, agreement for sale of leasehold interest is perfectly maintainable under the law. There was no fraudulent representation or misstatement describing the defendant No. 2 herein was the owner of the said tea estate at the relevant time. Moreover, it is the defendant No. 2 who might have been an affected party had the said agreement been collusive or fraudulent document, and significantly the defendant No. 2 in the earlier suit did not come forward to challenge the same in spite of writ of summons being served. ( 47 ) ALLEGATIONS of Clause (c) of paragraph 8 do not constitute any fraud in any stretch of imagination as this was the transaction and dealings between the defendant No. 2 company and the original defendant No. 1 and that the Power of Attorney dated 20th July, 1978 does affect neither the state of West Bengal nor any other person at all. ( 48 ) THE allegations contained in Clause (d) have been finally and conclusively decided and adjudicated by Justice Kabir even before filing of the suit and such findings of His Lordship has been accepted by the Hon'ble supreme Court of India. Therefore, all these allegations, which were made in the affidavit in opposition of the State of West Bengal, are motivated and the same should not have been accepted again and applied. ( 49 ) AS far allegation of non-impleadment of State of West Bengal in the previous suit is concerned the same are without foundation. These allegations do not constitute fraud. ( 50 ) I accept argument of Mr. ( 49 ) AS far allegation of non-impleadment of State of West Bengal in the previous suit is concerned the same are without foundation. These allegations do not constitute fraud. ( 50 ) I accept argument of Mr. Mitra that in a suit for specific performance only the parties to the contract are the necessary parties and not any other parties. During subsistence of the lease if lease hold interest is transferred or assigned with permission, the State cannot be concerned in any way as its status of superior landlord is not affected nor disturbed by such transfer or by agreement for transfer. Therefore, there was no defect in the suit as alleged and consequently in obtaining decree without State of west Bengal being made party in that suit. In this connection the decisions cited by Mr. Mitra reported in (1956)1 AER 273, AIR 1986 Bom 15 , AIR 1981 Del 237 , AIR 1987 P and H 197, AIR 1945 Cal 355 are very useful in support of my aforesaid views. ( 51 ) THE alleged particulars of fraud as mentioned in paragraph 8 (e)of the plaint of obtaining ex parte interim order dated 3rd September, 1981 in a writ petition Non. 9009 (W) of 1981 cannot constitute any allegation of fraud by reason of the fact that any interim order allegedly obtained fraudulently or by suppressing material fact could or might have been set at right in that proceedings itself. Moreover, this interim order passed in the earlier writ petition being No. 9009 (W) of 1981 has no effect and it had merged with the final order. ( 52 ) ALLEGATION of suppression of the writ of summons as alleged by paragraph 8 (g) is concerned the same are totally incorrect and as it appears from the evidence recorded herein that the writ of summons in the earlier suit was served by way of substituted method by advertisement. In any event the State of West Bengal being a superior landlord is not affected by any conveyance executed in terms of the decree in favour of the original defendant No. 1. Obtaining decree without adducing any evidence cannot be termed to be an act of fraud as the Court grants such relief. In any event the State of West Bengal being a superior landlord is not affected by any conveyance executed in terms of the decree in favour of the original defendant No. 1. Obtaining decree without adducing any evidence cannot be termed to be an act of fraud as the Court grants such relief. It is lawful for the Court also under the provision of the Civil Procedure Code under Order 8 Rule 5 sub-rule 2 to pronounce judgment on the facts contained in the plaint, except against a person under disability. But in certain cases the court may, in its discretion required any fact to be proved. Therefore, it is absolutely for the Court either to pronounce a judgment without any evidence in the event no written submission is filed or to call for evidence in certain case. Therefore, the party has no hand in obtaining such decree. In any event this alleged illegality as suggested by Mr. Moloy Ghosh in passing decree without calling for evidence cannot be a subject matter of scrutiny in subsequent suit. This could have been challenged by preferring an appeal or coming to the Court in the suit itself by any person affected thereby. The great Gopalpur Tea Company could have come forward to challenge the impugned decree. Even in this suit the Great Gopalpurtea Company though in existence legally has not come forward to question the previous decree. ( 53 ) ALLEGATION of making inconsistent statement with regard to possession of the property as mentioned in paragraph 8 (h) of the plaint cannot be accepted as being case of fraud, for factum of possession in a suit for specific performance hardly matter, unless possession is asked for as relief. ( 54 ) THE allegations of fraud of non-service of notice upon the State of West Bengal for execution of conveyance by the Registrar Original Side of this Court as mentioned in paragraph 8 (i) of the plaint is nothing to do with the fraudulent act. It is true that without consent and/or approval of the state of West Bengal no transfer can be said to be valid but it has got nothing to do with obtaining a decree for specific performance. This agreement for sale was subject to consent and approval of the State of West Bengal. It is true that without consent and/or approval of the state of West Bengal no transfer can be said to be valid but it has got nothing to do with obtaining a decree for specific performance. This agreement for sale was subject to consent and approval of the State of West Bengal. I am unable to comprehend how the factum of non obtaining permission and/or consent of State of West Bengal can constitute fraud as far as the allegation contained in paragraph 8 (k and I) of the plaint are concerned. In my view this fact do not constitute any fraud. So far the allegation of service of writ of summons upon the defendant No. 2 in the earlier suit is concerned as mentioned in paragraph 8 (m), it appears the writ of summons was served in the earlier suit by way of substitute service namely by advertisement, therefore, alleged service of writ of summons by the defendant No. 1 on behalf of the defendant No. 2 is of no effect. Had there been any fraud between the original defendant No. 1 and defendant No. 2, then after advertisement the defendant No. 2 would not have remained silent and would come forward to challenge the said decree. In my view it is for the defendant no. 2 herein who could have challenged as it was the said company, which was affected thereby. ( 55 ) MOREOVER assuming the aforesaid allegations made in said paragraphs per se constitute fraud then this alleged fraud has not been proved by any evidence whatsoever. The plaintiff of course brought Mr. R. N. Kanji as a witness but he has failed to prove the alleged act of fraud even in examination in chief. In the examination in chief no attempt has been made to prove the alleged act of fraud. In this connection it will be appropriate to quote only question put to him in examination in chief being number 60, which is reproduced hereunder. "come to paragraph 8 at page 18 of the plaint filed in the present suit-tell whether the statements made therein are correct? (Subject to objection by Mr. Hirak Mitra)/that is so. In this connection it will be appropriate to quote only question put to him in examination in chief being number 60, which is reproduced hereunder. "come to paragraph 8 at page 18 of the plaint filed in the present suit-tell whether the statements made therein are correct? (Subject to objection by Mr. Hirak Mitra)/that is so. " ( 56 ) THEREFORE, the nature of the question put to him is out and out a leading question and his answer cannot be taken of note of by this Court and whatever exhibits and documents having been exhibited these documents do not establish any allegation of fraud. Moreover, I find in the cross-examination the aforesaid witness do not know anything about the touzi Department nor does he have any knowledge of filing of the previous suit nor even dealt with the execution and renewal of the lease. Even he was not concerned with the officer in charge of the Touzi Department. Therefore, I am of the view that having regard to the answer to questions put in cross-examination this witness is not a competent witness at all to prove anything else. In this connection I think his answers to few questions should be very apposite. 90 : You must be knowing that Touzi Department under the State of west Bengal to deal with Tea Gardens ?/yes. 91 : Were you involved with the Touzi Department ? / I was not. 92 : What did the District Magistrate tell you about Tea Estate ?/ in the year 1994 when the Tea Garden was abandoned, DM called me over and asked me to deal with the case and the case arising out of contempt case. 125 : With regard to management of Tea Garden on behalf of the government of West Bengal, does it have any particular department ? Yes, there is a department called Touzi Department. 126 : Are you in that Department ? / No. 127 : Were you ever in that Department ? / No. 128 : Kindly give us the names of the person? who were in the Touzi department at the relevant point of time in 1994/95? / I cannot recall now. 129 : In 1980-81 who were in the Touzi Department ? /that I do not know. 130 : How many officials are there in the Touzi Department ? / No. 128 : Kindly give us the names of the person? who were in the Touzi department at the relevant point of time in 1994/95? / I cannot recall now. 129 : In 1980-81 who were in the Touzi Department ? /that I do not know. 130 : How many officials are there in the Touzi Department ? / Only one post of Officer is there and the person is changed from time to time. 210 : Please look at your answer to Q. 91. I take it that you reaffirm what you had stated in answer to Q. 91 today ? / I stick to this answer. 211 : You were never in the Touzi Department ? / No. 212 : If someone says you that you were posted in the Touzi department, that would be incorrect statement ? / That is so. 213 : I take it that you had no occasion to affirm an affidavit as an officer of the Touzi Department ? / That is so. If the District Magistrate authorizes me, then I can do. 220 : Were you respondent No. 9, namely, Officer-in-Charge of the touzi Department ? / There is an officer. I mean to say I was Deputy magistrate at that time. 221 : Give your answer either in affirmative or negative ? / I was not the Offier-in-Charge of Touzi Department but I was a Deputy Magistrate at that point of time. 223 : You had nothing to do with Touzi Department at any point of time ?/yes. 224 : As Deputy Magistrate did you have anything to do with Touzi department ? / At that point of time.-No. 225 : At any point of time ? / No. Only at the time of filing of this affidavit in the suit I was asked to do this job. 226 : was there anybody as Officer-in-Charge of the Touzi department ? / Yes, there was. 227 : In spite of that you were asked ? / That is so-for conducting the case. 229 : Apart from this litigation you have never affirmed any affidavit for Touzi Department ? / Regarding this case I have affirmed so many affidavits. 230 :. Apart from this matter have you affirmed any affidavit on behalf of the Touzi Department ? Excepting this Sonali Tea Estate matter, I did not affirm any affidavit. 229 : Apart from this litigation you have never affirmed any affidavit for Touzi Department ? / Regarding this case I have affirmed so many affidavits. 230 :. Apart from this matter have you affirmed any affidavit on behalf of the Touzi Department ? Excepting this Sonali Tea Estate matter, I did not affirm any affidavit. ( 57 ) THEREFORE, it is clear from the aforesaid oral evidence that he had and has no knowledge about the fact of this case and he has admitted that there was some other officer who could have deposed. Significantly, at one point of time the suit had to be adjourned on the ground of non availability of the District Magistrate, who wanted to depose in this matter and it will appear from the recordings of the minutes of the earlier order in this suit. But the District Magistrate ultimately did not come forward. Therefore, his testimony is unacceptable. ( 58 ) THE decisions cited by Mr. Moloy Ghosh on the question of fraud are not disputed and the proposition laid down in all those decisions namely (2000)3 SCC 581 , AIR 1994 SC 853 and (1996)5 SCC 550 are of no assistance. As I have already observed that none of the allegations contained in paragraph 8 or any of the paragraphs of the plaint constitute allegation of fraud. Moreover, such allegations of fraud have not been proved at all. ( 59 ) AS far as the submission of Mr. Das learned Senior Counsel for the defendant No. 3 is concerned I am of the view that his client has no manner of right, title and interest in the subject matter of the decree. ( 60 ) IN this suit for specific performance for sale of right, title and interest only the contracting parties are the necessary parties and none else. If the decree is passed in favour of the vendee and the conveyance is executed pursuant to the decree the effect thereof would be passing of right, title and interest on what vendor does possess is transferred in favour of the vendee. Admittedly this client was hot a party to the said agreement for sale nor he had any right, title and interest whatsoever in the land in question. Admittedly this client was hot a party to the said agreement for sale nor he had any right, title and interest whatsoever in the land in question. Moreover, whatever right he had on the strength of memo by which he was sought to be put in possession was set aside and cancelled. He was never in possession or for that matter possession is immaterial in relation to the challenge of the decree passed by this Court. Accordingly I hold that his client is an unnecessary and even improper party. Therefore, his client is struck out from the array of the defendants. I fail to understand how he could be impleaded as a party defendant in a suit of this nature when his title will not be affected nor he be benefited in any sense of commercial interest, not to speak of legal interest in a suit of this nature. Therefore, I am unable to accept the argument of Mr. Das that in the event the suit succeeds his client will have the opportunity to obtain a lease. I think this is not sufficient interest to come to a suit involving the dispute between two private individuals. ( 61 ) ANOTHER point which has been urged by the learned Counsel for the defendant No. 1 (a), (b), (c), and (d) that the instant suit is not really filed by the Government of West Bengal. From the evidence I find an incompetent person has signed and verified the plaint though he does not have any connection with the concerned department. Even the District Magistrate/ collector has not come forward to verify the plaint or to give evidence though on his ground time was obtained. I find, as rightly pointed by Mr. Hirak Mitra that there is a published methodology and procedure for filing a suit on behalf of the Government. This methodology is provided in Chapter III for filing Civil Suit in L. R. Manual in Rules 145, 146,147,148, 149 and 150. In cross-examination the various pertinent questions were put to witnesses of the plaintiff and he has not been able to prove that this procedure had been followed to file the instant suit. The aforesaid rules are set out hereunder :"rules 145-150 145. In cross-examination the various pertinent questions were put to witnesses of the plaintiff and he has not been able to prove that this procedure had been followed to file the instant suit. The aforesaid rules are set out hereunder :"rules 145-150 145. Collector to consult Government Pleader.-Whenever a Collector proposes to file a suit on behalf of the State he shall prepare a statement of the facts of the case and the evidence available to support the facts and shall transmit it with all material decrements to the government Pleader of his district. Some responsible officer should examine the more important witness whose evidence will be essential at the time of hearing and record notes of their statements. Such notes should be attached to the statement of facts. 146. Government Pleader's opinion.-If the Government Pleader considers that the facts stated do not disclose or that there is no reliable evidence to support a cause of action, he shall return the papers with his opinion to the Collector. 147. Further information to be furnished by the Collector.-If the government Pleader requires further information or additional documents he shall communicate with the Collector and the Collector shall supply the information or the documents and in intricate cases shall depute some other acquainted with the facts to explain the case to the Government Pleader. 148. Government Pleader to return papers.-The Government Pleader shall then return the papers with the opinion to the Collector. If he is of opinion that the suit should be filed, he shall also forward with the papers a draft plaint with the list of documents required by Order-VII. Rule 14 of the Civil Procedure Code. 149. Reference to Legal Remembrancer.- (1) On receiving the draft plaint from the Government Pleader, the Collector shall except in the cases mentioned in sub-rule (2) make a reference to the Legal remembrancer through the Commissioner. (2) Suit of the nature cognizable by Courts of Small Causes and less than Rs. 500 in value and other suit of less than Rs. 50 in value, except where the suit is instituted at the instance of any of Government department, may be brought with the sanction of the Commissioner and conducted under his instructions without reference to the Legal remembrancer; but the Commissioner may in his discretion make a reference to the Legal Remembrancer. 50 in value, except where the suit is instituted at the instance of any of Government department, may be brought with the sanction of the Commissioner and conducted under his instructions without reference to the Legal remembrancer; but the Commissioner may in his discretion make a reference to the Legal Remembrancer. If the suit in question involves substantial question of law or if its decision is likely to affect the interest of the public. 150. Preparation of brief.-When making a reference to the Legal remembrancer or the Commissioner, the Collector shall cause to be prepared a brief which shall consist of the following papers or copies thereof; (1) the statement of facts ; (2) the plaint as drawn by the Government Pleader: (3) the list required by Order VII, Rule 14 of the Civil Procedure Code with copies of such of the documents as are necessary to enable the legal Remembrancer to understand the case. " ( 62 ) IT appears from the evidence that Court fee has been paid out of the fund and pocket of the learned Government Pleader. There was no evidence; such payment of Court Fee has been reimbursed by and on behalf of the Government. In this connection answer to few questions of the plaintiff witness is required to be re-produced. 279 : Who arranged for payment of Court fees in this matter ? / It has either been done by the G. R Office or by the L. R. Department-l do not know. 280 : I suggest to you that State of West Bengal did not pay the court fee for this litigation ? /that I do not know. 281 : Can you tell if the court fee was borne or has been borne by state of West Bengal there would be some appropriate entry in the records of the State of West Bengal Exchange ? / I cannot say. 282 : You have verified this plaint-is that so ? /yes. 283 : Do you know who had purchased the Court stamp ? / So far I remember the court fee stamp was paid by the Learned G. P. Subodh Ukil from his own pocket and it was referred to the Government and the government stated that the same would be repaid. I have heard of this thing but I have not seen any records to that effect. / So far I remember the court fee stamp was paid by the Learned G. P. Subodh Ukil from his own pocket and it was referred to the Government and the government stated that the same would be repaid. I have heard of this thing but I have not seen any records to that effect. 284 : From whom you have heard ? / From Subodh Ukil himself. 285 : Have you heard the person who would be reimbursing these court fee expenses ? / L. R. Department. 286 : Who did instruct to draw this plaint ? / Instruction was given from the Government's end by the L. R. Department. 287 : Who did take decision to file the suit ? / Subodh Ukil, the then g. R after consulting the District Magistrate. 288 : Therefore, the then G. P. Subodh Chandra Ukil and the District magistrate jointly took decision for filing the suit-is that your evidence ? / yes. 289 : You have put your signature to verify your plaint ? / Yes. 290 : You have nothing to do in taking decision for filing the instant suit-is that so ? / Yes. 291 : Do you have any personal knowledge whether any reimbursement of this court fee has been done by the Government or not ? / I cannot say. 292 : According to you, who can say this ? / Subodh Ukil or department can say-I have no personal knowledge. ( 63 ) THEREFORE, I am of the view that there is a great doubt whether the suit has been filed really by the Government of West Bengal or by some interested persons. Whenever any suit is required to be filed the aforesaid methodology has to be observed mandatorily to accept it as a lawful action on behalf of the State of West Bengal. In that view of the matter I have no hesitation to dismiss the suit as the same has been filed without any basis whatsoever. Therefore, the same is dismissed with costs to be assessed by the Department. ( 64 ) THERE is delay in delivering the judgment for following reasons, which are as follows : on the day when the hearing on behalf of the writ petitioner was concluded the learned Advocate for the State-respondent was called upon to argue. ( 65 ) MR. Therefore, the same is dismissed with costs to be assessed by the Department. ( 64 ) THERE is delay in delivering the judgment for following reasons, which are as follows : on the day when the hearing on behalf of the writ petitioner was concluded the learned Advocate for the State-respondent was called upon to argue. ( 65 ) MR. Shyam Sarkar, learned senior Advocate then representing the State submitted that a proceeding had been initiated before the Supreme court of India for withdrawing and transferring of this writ petition to another forum. On receipt of this intimation, I concluded the hearing on that day and i was waiting for any result of that application would be communicated to this Court. Since there has been sufficient time lag, I placed both the matters for judgment today. ( 66 ) MR. Ukil, learned senior Advocate, appearing to day on behalf of the State has submitted that he is hot in a position to inform the Court whether any order has been passed by the Apex Court on that application as mentioned above. ( 67 ) THIS Court cannot wait because sufficient time has already been taken by this Court. Therefore, I deliver the judgment today. However, operation of the judgment and decree in suit as well as the order in the writ will remain stayed for a period of eight weeks from date.